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Online
Support Center License Agreement
SUN MICROSYSTEMS,
INC. ("SUN") IS WILLING TO GRANT USE OF THIS ONLINE CUSTOMER
CARE SERVICE, INCLUDING RELATED SERVICES (THE "PROGRAM") TO
SELECTED CUSTOMERS ON THE CONDITION THAT THE CUSTOMER ACCEPTS ALL OF THE
TERMS AND CONDITIONS IN THIS AGREEMENT IN ADDITION TO THE TERMS AND CONDITIONS
SET FORTH IN CUSTOMER'S EXISTING SUPPORT SERVICES AGREEMENT WITH SUN.
PLEASE READ THE TERMS
OF THIS AGREEMENT CAREFULLY BEFORE USING THIS PROGRAM. BY USING THIS PROGRAM,
CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTOOD THIS AGREEMENT
AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. THIS AGREEMENT IS
SUBJECT TO CHANGE WITHOUT PRIOR NOTICE AT ANY TIME IN SUN'S SOLE DISCRETION.
- USE OF PROGRAM.
Sun grants Customer a nonexclusive, nontransferable, worldwide, royalty-free
right to use the Program on Customer's workstations. The Program may
only be used internally by Customer's authorized employees. Customer
must have a valid services agreement or warranty in effect with Sun
and proper authorization to access the Program. Customer's right to
use the Program is subject to any limits stated herein, or otherwise
established by Sun in its sole discretion. Sun may, at any time, decline
to support a system that is not covered under an existing support services
agreement or Sun warranty. Any support of an uncovered system will be
subject to availability and additional fees on a time and materials
basis, and will be governed by the Sun Standard Sales Terms. Customer
may not sublicense, assign, distribute or transfer access to the Program
or any copy or portion thereof and any attempt to do so is void.
- TITLE. No right,
title, or interest in and to any intellectual property, including but
not limited to trademarks, patents, service marks, or trade names of
Sun or Sun's licensors is granted hereunder. Title, ownership rights,
and intellectual property rights in the Program and all other materials
accessed through the Program will remain in Sun or its licensors.
- ACCESS AND CONSENT.
Customer understands and acknowledges that the Program displays certain
information concerning Customer's support services agreement(s) and
designated contacts via the Internet, and Customer gives its consent
to the provision of such information via the Program. Customer's password
and user security and the security of information provided via the Program
are the responsibility of Customer. Customer is responsible for all
costs and charges that it incurs to use the Program. Customer represents
that any person who accesses the Program using a user name and password
assigned to Customer has the authority and capacity to use the Program
features. Customer waives any right to challenge the validity, confidentiality
or enforceability of any service order, contract information, authorization
or notice on grounds that it was electronically transmitted and authorized
via the Program.
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CONFIDENTIALITY.
(A) The Program contains and displays confidential and proprietary
information and trade secrets of Sun and/or its licensors and customers
("Confidential Information"). Confidential Information includes:
(i) the Program (including its nature and existence); (ii) any test
results, error data, or other reports made by Customer in connection
with Customer's use of the Program; (iii) any and all other information
which is disclosed by Sun to Customer orally, electronically, visually,
or in a document or other tangible form which is either identified
as or should be reasonably understood to be confidential and/or proprietary;
and (iv) any notes, extracts, analysis, or materials prepared by Customer
which result from use of the Program or copies or derivative works
of Sun's proprietary or confidential information from which the substance
of Confidential Information can be inferred or otherwise understood.
(B) Confidential
Information does not include information received from Sun which Customer
can establish by legally sufficient evidence: (i) is or became known
by Customer without an obligation to maintain its confidentiality;
(ii) is or became generally known to the public through no act or
omission of Customer; or (iii) is independently developed by Customer
without the use of the information described above in paragraph (A).
(C) Customer agrees
not to disclose Confidential Information to any third party and will
protect and treat all Confidential Information with the same degree
of care as Customer uses to protect its own confidential information
of like importance but in no event less than reasonable care. Except
as otherwise expressly provided in this Agreement, Customer will not
use, make or have made any copies of Confidential Information, in
whole or in part, without the prior written authorization of Sun.
Confidential Information will only be disclosed to and used by Customer's
employees with a need to have access for the purposes of this Agreement.
Customer may disclose Confidential Information pursuant to statute,
regulation, or order of a court of competent jurisdiction, provided
that Customer provides Sun with prior notice and cooperate with Sun
in taking appropriate protective measures.
(D) Customer agrees
that any breach or threatened breach of this Agreement will result
in irreparable harm to Sun for which damages would not be an adequate
remedy and, therefore, in addition to its rights and remedies otherwise
available at law, including without limitation the recovery of damages
for breach of this Agreement, Sun shall be entitled to equitable relief,
including both temporary and permanent injunction, to prevent any
unauthorized use or disclosure, and to such other and further equitable
relief as the court may deem proper under the circumstances.
- DISCLAIMER OF WARRANTIES.
THE PROGRAM IS PROVIDED "AS IS", WITHOUT A WARRANTY OF ANY
KIND. ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, DATA ACCURACY, OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT
TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
THE ENTIRE RISK AS TO USE, ACCESS, QUALITY AND PERFORMANCE OF THE PROGRAM
IS BORNE BY THE CUSTOMER.
- LIMITATION OF LIABILITY.
SUN'S LIABILITY UNDER OR FOR BREACH OF THIS AGREEMENT WILL BE LIMITED
TO THE AMOUNT PAID BY CUSTOMER FOR SERVICE WHICH IS THE SUBJECT OF THE
CLAIMS. IN NO EVENT WILL SUN BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGE IN CONNECTION WITH OR ARISING OUT
OF THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE,
DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR BREACH
OR IN TORT, EVEN IF SUN HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY
OF SUCH DAMAGE. LIABILITY FOR DAMAGES SHALL BE LIMITED AND EXCLUDED,
EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF
ITS ESSENTIAL PURPOSE.
- PROGRAM INFORMATION.
Sun has no direct control over Customer's use of the Program. Sun does
not and cannot warrant the performance or results that may be obtained
by its use. Sun does not represent, warrant or guarantee the accuracy
and timeliness of information provided via the Program and Sun will
have no liability whatsoever to Customer, or any other party, on account
of any inaccuracies or untimeliness of information or use or inability
to use the Program. Sun will only accept and process service orders
for support according to the then-current Sun business practices. Program
is not intended for use in connection with urgent or serious priority
support requests, and Sun disclaims any express or implied warranty
of fitness for such uses. Customer represents and warrants that it will
not use Program for such purposes.
- TERMINATION. This
Agreement is effective upon acceptance in accordance with this Agreement
and until terminated. Customer may terminate this Agreement at any time
by discontinuing use of the Program and destroying all copies of the
Program in its custody or control, whether in tangible or electronic
form. Sun may, in its sole discretion, terminate this Agreement immediately
without any notice and for any reason, including without limitation,
if Sun updates, revises or otherwise amends the Program, or if Customer
fails to comply with any provision of this Agreement. Upon termination
by Sun, Customer will destroy all tangible and electronically stored
copies of the Program or parts thereof.
- EXPORT LAW. The
Program and related information are subject to U.S. export control laws
and may be subject to export or import regulations in other countries.
Customer agrees to comply strictly with all such laws and regulations
and acknowledges that Customer has the responsibility to obtain such
licenses to export, re-export, or import as may be required. Further,
Customer acknowledges that Customer is not a national of Cuba, Iran,
Iraq, Libya, North Korea, Sudan or Syria or a party that is listed in
the U.S. Table of Denial Orders or U.S. Treasury Department's list of
Specially Designated Nationals.
- SEVERABILITY. If
any provision of this Agreement is held to be unenforceable, that provision
will be removed and the remaining provisions will remain in full force.
- GOVERNING LAW,
JURISDICTION. Any action related to this Agreement shall be governed
by California law and controlling U.S. federal law, and choice of law
rules of any jurisdiction shall not apply.
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